The laws that are ruining the Internet

These laws were drawn up with the best of intentions. They were supposed to protect us. But, sadly, they're being used for nefarious purposes.

I love government. Without our codified protections, businesses would return to their former practices of corporate monopolies, willful distribution of unsafe products, and child labor. As you know, your soldering skills are way better than a 12-year-old’s, even if their tiny hands can better clean machinery and wipe away tears.

But some of the laws created to protect us have strings attached—and some of these strings could strangle the Internet. That’s because laws have many sections with unclear writing that allow for interpretations so broad that not even Dora could explore them. The concern is that these laws could create a chilling effect—that is, when people quell their own speech in fear of litigation or sanctions.

What the law is supposed to do: Who doesn’t want to see intellectual property holders get the money they’re owed for their creations? Monsters, that’s who. Section 1201 of the DMCA strengthens intellectual property rights by creating a regulation that can jolly well roger copyright pirates.

If you hack, tweak, or in some way alter controls on copyrighted works, Section 1201 of the DMCA permits the copyright owner to enforce digital rights management (DRM), not with a sledgehammer but with napalm. Sit back and enjoy your copyright protection with a beer, citizen.

What could possibly go wrong…?

For example, “thanks” to this section, we have DVD region locking. Here’s how it works to your detriment: Let’s say you have a DVD player from the United States (Region 1) and a DVD from the United Kingdom (Region 2). You’ll discover, to your dismay, that the DVD player checks if disc region matches. If it doesn’t, the disc won’t play, even if you purchased the DVD legally in another country. Logically, this means that Section 1201 doesn’t actually protect against piracy.

As Doctorow says, “[Purchasing the DVD] is the opposite of piracy. The studios want to be able to sell DVDs at different prices in different countries.” It’s laws like this, Doctorow suggests, that will create a toaster that won’t brown your third-party bread.

“We know from the Copyright Office's study of this in 2015 that security researchers who find defects in systems that control access to a copyrighted work…don’t come forward with them, because they worry that they’ll get into trouble,” says Doctorow. “The trouble is pretty intense. You can face a $500,000 fine and a five-year prison sentence for a first offense.”

As a result, software is now more vulnerable to security flaws. And when software runs your pacemakers, defibrillators, cars, and voting machines, any flaws can put your life—and your democracy—at risk.

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Because of lockdowns on copyrighted works, third-party improvements aren’t permitted. Doctorow spoke of an acquaintance with photosensitive epilepsy who was hospitalized by watching a Netflix video. But just try creating an accessibility adaptation, where a programmer first has to run Netflix video through an analysis program, and see what Netflix has to say about it.

I’ll wait right here. With my beer that I’m enjoying. Because I’m a copyright holder, and I don’t have to care about your epilepsy, as proponents of DMCA Section 1201 obviously have more bargaining power than do advocates of the Americans with Disabilities Act.

What the law is supposed to do: This section of the act protects companies (such as Twitter and Reddit) from being sued when users post their own content to these platforms. It’s personal responsibility, writ in law.

“Section 230 creates a legal immunity for online service providers,” explains Annemarie Bridy, professor of law at the University of Idaho and affiliate scholar at the Stanford University Center for Internet and Society. “So providers of platforms like Facebook and YouTube that accept a lot of user-generated content will under no circumstances be liable for content provided by third parties…. It allow[s] online platforms to have the runway and the space to grow without constantly being under fear of litigation.”

In other words, if someone on Reddit suggests a carefully controlled experiment with a goal post and a backflip, and you attempt it, your heirs can’t sue Reddit for damages.

What could possibly go wrong…?

Bridy says, Section 230 has led to some of the issues around respect, hate speech, and online harassment.

This law facilitates bad behavior. A person who says something horrible is in no way admonished for it. Like a puppy who doesn’t get a stern, “No, bad doggie,” it will continue to piddle all over your floor.

Bridy says, “In practice, most of the large platforms really didn’t take advantage of the piece [of the law] that said you can engage in moderation and screening of content.” She suggests that this hands-off approach stems from an adherence to First Amendment values. The First Amendment “governs only what kinds of restrictions the government can put on speech,” she says. “But First Amendment norms disfavoring speech restrictions have very much made their way into the online marketplace and into our broader marketplace of ideas.”

In general, online platforms adopt very permissive attitudes toward what speech users can post to platforms. “We’ve seen over the last four, five years, however, that this permissiveness has led to some fairly bad online speech norms…that are potentially harmful,” Bridy says.

Moderation would help curtail hate speech, particularly moderators who work in-house. A better solution would have companies prioritize the removal of hate speech. The best solution? Create careful, thoughtful laws against hate speech directed at an individual.

Of course, our right to speak against our government should remain protected. You wouldn’t want a dictatorship, would you?

What the law is supposed to do: Someone is lying in public or in print, defaming your good name or insulting your terrific product? You can sue them. That’s important, because there’s free speech and then there’s pants-on-fire lies. The distinction makes people think about the consequences of their verbal actions and smoking pants.

Many countries have laws against defamation—some of those laws come with prison sentences—and they all protect individuals against damage to their business and reputation from someone else’s falsehoods. In America, these laws vary from state to state.

These laws make me feel like filing a slander suit against the kindergartener who said I had cooties. Because I never once had cooties. I only had girl germs.

What could possibly go wrong…?

You can sue anyone into a puff of dust and a domain name pointing to nothing but crushed dreams. If you’re big enough, and your defendant is small enough, just the threat of a lawsuit is enough to get them to back away carefully from anything they want to say—even if it’s true. It’s called a SLAPP suit: Strategic Lawsuit Against Public Participation. There’s no way something with that acronym could be used abusively, right?

“The idea is that somebody posts something online about another person or a business that is unflattering, where there’s a pretty good chance that the content is not at all illegal; in fact, it is protected and lawful speech,” Bridy says. “What happens is, as a kind of intimidation tactic or as a way to try to get the speaker to back down or to remove that content, the person will file a defamation or libel lawsuit. The point of those lawsuits is not to litigate a legitimate claim of defamation, but to suppress lawful or undesirable speech.”

Talk-show host John Oliver, of "Last Week Tonight," experienced this recently, in an episode about Bob Murray, the CEO of coal-mining company Murray Energy. Murray’s lawyers issued Oliver’s a “cease and desist” letter, even before the episode aired. After the episode aired, Murray’s lawyers sued HBO and John Oliver for airing information that Murray considered “defaming and demeaning” yet showed that Murray stands against protections for his coal miners. Murray may not make his SLAPP stick, though Oliver will certainly make his slapstick.

There are a few laws against these SLAPP suits, a.k.a. anti-SLAPP suits. The real problem is that we don’t have a federal anti-SLAPP law. Bridy explains that libel and defamation suits are brought to the state, not the federal government. But it’s necessary to empower journalists and citizen journalists to forge links to misdeeds without fear of legal retribution.

What the law is supposed to do: The Patriot Act and USA Freedom Act give the U.S. government tools to fight terrorism. The government can stop terrorism too, and not just by taking the fight to Daesh’s doorstep. The Patriot Act of 2001 permitted the government to collect data online, as well as on cell phones, in order to determine who in America is conversing with some very bad people.

But the Patriot Act, particularly section 215, also removed some of the protections that Americans enjoy. The government took advantage of this to bulk collect your data, which meant the data collection that ensnares terrorists in its wide net also ensnared you. The Patriot Act even gave law enforcement the ability to search, egads, our library records. Now the government knows I’ve been reading E.L. James.

Lucky for those of us who like privacy, the Patriot Act was reformed and amended to the USA Freedom Act of 2015. Chris Calabrese, vice president for policy at the Center for Democracy and Technology, says this amendment “brought some increased transparency measures in place, and it created some limitations on what you could do with information after you collected it. But the main thing it did was limit the bulk collection of records.”

What could possibly go wrong…?

“The USA Freedom act was not a complete solution by any stretch,” Calabrese says. Although bulk collection of data was theoretically limited, it contains open-ended language that can allow for vastly creative and disparate interpretations. And we don’t need laws that suggest 2+2=5.

The EFF writes about other issues with the USA Freedom Act. For example, the law doesn’t create an oversight committee “that could independently investigate the surveillance programs and give the country a full accounting.”

Nor does the USA Freedom Act address the National Security Agency’s efforts to crack all encryption. Plus, as the EFF points out, the government is using the phrase “state secrets” as a bullet to shoot down any attempt “to prevent litigation from getting to a court decision on whether the spying is unconstitutional.”

“People rely on the Internet and the expectation they’ll be able to have private and confidential communications,” Calabrese says. “It’s important for organizing, for exercising your First Amendment rights, for business. If people are worried about constant monitoring, either from the government or from a company, they’re going to be less likely to speak what’s on their mind and less likely to access controversial information, even if it’s valuable and important as a citizen of a democracy.”

The ability to learn new things, to be creative, and to speak our minds are threatened if there’s a fear and a danger that the government is engaged in unwarranted snooping on people’s communications, says Calabrese.

Americans are aware of this enough to fight for this for ourselves. But if you’re a foreigner, you can still be targeted if the right vastly creative interpretation can be found. The reforms of the USA Freedom Act are only meant for U.S. citizens.

You want the Internet safe and secure? Get to work.

The world at large, as well as the digital world, is a careful balancing act between big government and big business. And while liberals tend to fear big business and conservatives tend to fear big government, it's OK to be afraid of both: Swing in either direction, and you get a different yet very real dystopia.

It’s up to us to participate in government and to shape the world we want. Write your congresspeople and tell them you expect accountability and privacy. Because you don’t want either business or government to know you have been taking Stephanie Meyer books out of the library.

This article/content was written by the individual writer identified and does not necessarily reflect the view of Hewlett Packard Enterprise Company.

This article/content was written by the individual writer identified and does not necessarily reflect the view of Hewlett Packard Enterprise Company.